Federal Surface Transportation Board Approves Construction of Fresno-to-Merced HSR Project

On June 13, 2013, in a 2-1 decision, the federal Surface Transportation Board (“the Board”) granted the California High-Speed Rail Authority (“the Authority”) an exemption from the prior approval requirements granted to the Board by 49 U.S.C. § 10901, removing the final regulatory hurdle for the construction of the Fresno to Merced segment (“the Project”). The Board previously determined that it had jurisdiction over the intrastate project due to the connectivity between the high-speed train and Amtrak. In this decision, the Board decided to adopt the environmental review document prepared by the Authority and the Federal Railroad Administration rather than conduct its own environmental review. The result is that the Authority is now authorized by the federal government to construct the first 65 miles of track effective June 28, 2013.

On March 27, 2013, the Authority filed a petition for exemption and motion to dismiss for lack of jurisdiction. In the motion to dismiss, the Authority claimed that the Project did not require Board approval because it was located entirely within California, served only California cities,  and thus was not “part of the interstate rail network” under 49 U.S.C. § 10501(a)(2)(A). On April 18, 2013, the Board denied the motion to dismiss, citing the number of proposed HSR stations that were at or adjacent to current Amtrak stations. Additionally, the Board focused on the integral role that Amtrak’s San Joaquin line will play in the Authority’s new “blended” approach, which involves using and upgrading existing rail line during the construction of the system. Some of those existing lines, like the San Joaquin, belong to Amtrak.

Because the Board has jurisdiction over the high-speed rail system, no construction could begin on the Fresno-to-Merced segment until it authorized the Project. The Board usually chooses to conduct an environmental review on par with an EIS for rail construction projects. CEQ regulations, however, allow federal agencies to adopt the environmental documents prepared by another federal agency. On April 12, 2013, the Board’s Office of Environmental Analysis (OEA) recommended that the Board adopt the final EIS/EIR prepared by the Authority and the Federal Railroad Administration (FRA) because of the thorough, “hard look” environmental analysis the project had already received.

The Board, after addressing comments it received from opponents of the exemption, decided to adopt the OEA’s recommendation. The Board cited the overall intent of the exemption statute: “unless there is a good reason for full regulation, we should be looking toward exemption or relaxation of unneeded regulatory burdens.” The Board noted, however, that only the first 65 miles were authorized because that was all that had been subjected to environmental review. And the exemption was only granted if the Authority constructed the FRA-designated environmentally-preferable alternative and complied with the mitigation measures imposed by the FRA and the memorandum of agreement to preserve historic places.

The one dissenting Board member, Vice Chairman Begeman, believed a more thorough examination of the project was warranted because of the large amount of taxpayer dollars that were used to fund the project. The Project’s financial information was not discussed in the EIR/EIS, though it was discussed in the Authority’s 2012 Business Plan. The Vice Chairman was concerned that the decision set a precedent of streamlined review for future high-speed rail projects.

The full decision is available at http://www.stb.dot.gov/decisions/readingroom.nsf/UNID/3DA3D75A2453DD2685257B8900680856/$file/43070.pdf